This essay joins recent scholarship on the epistemology of realist fiction by investigating the role of facts in the creation of fiction. Close scrutiny of Anthony Trollope's The Eustace Diamonds (1872) reveals several different processes of fact-making: legal ones as well as nonlegal communal endeavors such as rumor, gossip, and the regulation of propriety. The neat division whereby legal facts belong to the realm of the empirical and the facts of rumor belong to the communal does not hold in the novel, however: underneath the surface of almost any empirical and legal fact are traces and residues of a communal endeavor. The instability of facts and fact-making in the novel prompts a reconsideration of the epistemology of realist form and of novelistic probability: just how are fictional facts determined? Building on Irene Tucker's understanding of probability as a self-conscious reflection of the empirical, the essay argues that the ostensibly empirical epistemology of fictional probability is also a communal one. Moreover, the secular empirical rules of realism are not as stable——or empirical——as we have come to understand them. In the legal realm, this epistemological reconsideration shows how literary realism has drawn on the law not only to ground its famously empirical discourse but also to anchor novelistic truth in a communal endeavor. The Eustace Diamonds thus problematizes not only the production of fact in the novel but also the empiricist, positive-law tradition from which this concept emerged.
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